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May 24 — A lawyer who fell asleep and started snoring during a continuing legal education program
deserves the same sanction he got in Virginia—a six-month suspension—for denying it
to a Virginia bar investigator, the District of Columbia Court of Appeals decided
May 12 (
In re Hartke, 2016 BL 151253, D.C., No. 15-BG-984, 5/12/16
).

The lawyer missed the mark by arguing that sleeping and snoring in a CLE class don't
constitute misconduct in the District of Columbia, the court said. He wasn't suspended
for that conduct but rather for not correcting his misstatements in the Virginia disciplinary
proceeding, it said.

The per curiam opinion illustrates how lawyers who misbehave can create more trouble
for themselves by not coming clean with disciplinary investigators. The court didn't
discuss what ethics charges the lawyer might have faced in Virginia if he had told
the truth.

False Negative

Disciplinary counsel in D.C. sought identical reciprocal discipline for Wayne Richard
Hartke after the Virginia State Bar disciplinary board suspended him from practice
in that jurisdiction for six months.

The
Virginia board's order said Hartke stipulated that he fell asleep and began snoring during the morning session
of a CLE seminar, and that the seminar coordinator had to intervene and wake him up.

Hartke also stipulated that during the afternoon session, he began talking loudly
and making outbursts even after the seminar coordinator asked him to stop. An attendee
who led Hartke out of the room said he smelled alcohol on him, and another attendee
saw a nearly empty liquor bottle among the lawyer's possessions and said Hartke appeared
to be intoxicated. Hartke admitted to an attendee that he'd been drinking, the board
said.

However, Hartke didn't admit his misbehavior to Virginia disciplinary authorities.
He denied falling asleep and snoring during the morning session, and he denied bringing
alcohol to the seminar and being intoxicated. Later Hartke admitted those statements
weren't accurate and that he didn't correct his misstatements, the court said.

Hartke and the disciplinary board stipulated that he violated
Rule 8.1(b) and
Rule 8.4(a) of the Virginia Rules of Professional Conduct.

Rule 8.1(b) requires lawyers to disclose facts necessary to correct a misapprehension
they know has arisen in connection with a disciplinary matter. Rule 8.4(a) makes it
professional misconduct to violate or attempt to violate the professional conduct
rules.

Same Here

The court of appeals said its reciprocal discipline rules impose a rigid standard
of presumptively imposing identical discipline unless the attorney shows by clear
and convincing evidence that the case falls within one of five specified exceptions.

The court didn't buy it. Virginia didn't suspend Hartke for that conduct but rather
for failing to correct misrepresentations in the disciplinary proceeding, it said.

Rule 8.1 of the D.C. Rules of Professional Conduct prohibits misrepresenting facts in a disciplinary
proceeding, the court pointed out. It also cited
Rule 8.4(c) which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation.

Hartke urged the court to consider mitigating circumstances, but it found no reason
to look behind the sanction imposed in Virginia. The disciplinary process in that
state afforded Hartke a right to present evidence of mitigation, it said.

Back to Work

The court imposed a six-month suspension from practice in D.C. starting no later than
the date when Hartke notified D.C. of his Virginia suspension. The six-month suspension
period has already run, it noted.

Judges Corinne Ann Beckwith, Roy W. McLeese and William C. Pryor were on the panel.

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